Decision Date: 12/04/95 Archive Date:
12/05/95
DOCKET NO. 93-10 322 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUES
1. Entitlement to service connection for a left hip
disability.
2. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
back disability.
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Mark D. Hindin, Counsel
INTRODUCTION
The veteran had active service from September 1949 to March
1950, from September 1950 to August 1961.
Entitlement to service connection for a low back disability
was denied in a decision of the Board of Veterans' Appeals
(the Board) dated in April 1986.
The current appeal arises from a June 1992 rating decision
in which the regional office (RO) denied entitlement to
service connection for hip and left leg disabilities, and
determined that the veteran had filed a duplicate claim for
service connection for a low back disability.
In May 1995, the Board remanded the case to the RO to
clarify the issues on appeal, provide the veteran an
opportunity to submit evidence of well-grounded claims, to
afford additional examination, and for efforts to secure
additional service medical records. The RO undertook that
development and returned the case to the Board.
In a statement dated in June 1995, the veteran clarified
that he wished to appeal only the issues of entitlement to
service connection for a left hip disability and whether he
had submitted new and material evidence to reopen his claim
for service connection for a low back disability.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he was hospitalized at Fort Riley,
Kansas, in October 1949, when he was treated for hip and low
back disabilities. He asserts that his back was broken. He
also contends that he has submitted new and material
evidence to reopen his claim for service connection for a
low back disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the veteran has not submitted
evidence of a well-grounded claim for service connection for
a left hip disability, and that new and material evidence
has not been submitted to reopen his claim for service
connection for a back disability.
FINDINGS OF FACT
1. There is no competent evidence that the veteran
currently has a left hip disability.
2. The Board denied entitlement to service connection for a
low back disability in a decision dated in April 1986.
3. Additional evidence received since that time, including
lay statements, a statement from a private physician and
service medical records, does not raise a reasonable
possibility of a change in the outcome of the claim.
CONCLUSIONS OF LAW
1. The veteran has not presented a well-grounded claim for
service connection for a left hip disability. 38 U.S.C.A. §
5107 (West 1991).
2. The Board's April 1986, decision denying entitlement to
service connection for a low back disability is final. 38
U.S.C.A. §§ 7103, 7104 (West 1991); 20 C.F.R. §§ 20.1100
(1994).
3. Evidence received since the Board denied entitlement to
service connection for a low back disability is not new and
material and the claim is not reopened. 38 U.S.C.A. § 5108
(West 1991); 38 C.F.R. §§ 3.156, 20.1105 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Left Hip Disability
Under the provisions of 38 U.S.C.A. § 5107 the veteran has
the initial burden of submitting evidence of well-grounded
claims. The United States Court of Veterans Appeals (the
Court) has provided guidance as to what constitutes a well-
grounded claim. The Court has held that claims of service
connection must be accompanied by supporting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded. Tirpak v.
Derwinski, 2 Vet.App. 609 (1992).
In Caluza v. Brown, 7 Vet.App. 498, 506 (1995), the Court
held that three elements are necessary for a well-grounded
claim. There must be competent evidence of current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or
medical evidence), and of a nexus between inservice injury
or disease and the current disability (medical evidence). A
lay person is not qualified to offer competent evidence of
medical diagnosis or causation. Grottveit v. Brown, 5
Vet.App. 91 (1993).
In this case the veteran may be competent to report that he
experienced a left hip injury during service. However, he
has offered no competent evidence that he currently has a
left hip disability. Under Caluza, such competent evidence
must be medical. There is no medical evidence of a left hip
disability at any time since service. In the absence of a
current disability, there can be no valid claim. Brammer v.
Derwinski, 3 Vet.App. 223, 225 (1992). The veteran's
opinion that he has a hip disability is not competent and
does not give rise to a well grounded claim. Accordingly,
the claim is denied.
The Court has held that where a claim is not well grounded,
the Department of Veterans Affairs (VA) may have a duty to
inform the veteran of the evidence necessary to render the
claim well grounded. Robinette v. Brown, 8 Vet.App. 69
(1995). In this case the RO informed the veteran of the
necessary evidence in the claims forms he completed, in its
notices of decisions and in the statement of the case and
supplemental statements of the case. The Board also
notified the veteran of the need to submit evidence of a
well-grounded claim in its remand. The veteran has not
suggested the existence of any evidence which could serve to
render his claim well grounded.
II. Back Disability
In 1986, the Board addressed the issue of entitlement to
service connection for a low back disability. The benefit
sought on appeal was denied. The Board's April 1986
decision is final and the veteran's claim can be reopened
only with the submission of new and material evidence. 38
U.S.C.A. §§ 7104, 5108.
The Court has held that new and material evidence is
evidence which creates a "reasonable possibility" of an
allowance. Specifically, new evidence is that which is more
than merely cumulative of other evidence already of record.
The Court has defined material evidence as that which is
relevant and probative of the issue at hand. Colvin v.
Derwinski, 1 Vet.App. 171 (1991). In that decision the
Court elaborated that evidence is new and material when it
creates a reasonable possibility (assuming its credibility)
of changing the result when viewed in the context of all
evidence, both old and new.
The evidence considered in the Board's 1986 decision
included service medical records dated from April 1954, the
veteran's testimony at a hearing on appeal, statements from
service acquaintances, and VA outpatient treatment records
dated in March 1982 and February 1985.
The then available service medical records show that the
veteran's spine was found to be normal on periodic
examinations, including an examination for enlistment in
April 1954, and an examination for separation from service
in August 1961. Reports of medical history completed by the
veteran contained no reports of back injury or disability.
In August 1954, the veteran reported that he had injured his
left knee playing football in 1949. There were no findings
referable to a back disability in the remainder of the
service medical records.
Statements from several service acquaintances of the veteran
were to the combined effect that they served with the
veteran in 1950 and 1951, and that they recalled that he had
been removed from shipment orders because of back injuries
experienced earlier in service, and that the veteran had
been given a physical profile due to back disability.
At the hearing on appeal in December 1985, the veteran
testified that he had injured his back in a ball game at
Fort Riley, Kansas in 1949. He reported that he had been
hospitalized for four or five days and had been prevented
from going to Korea with his unit.
The VA outpatient treatment records show that in March 1982,
it was reported that the veteran complained of back pain
which had had its onset two years previously. It was
indicated that the complaints were not the result of injury.
The diagnosis was muscle sprain. In February 1985, it was
reported that the veteran complained of back pain and
reported that he had hurt his back in 1949. The assessment
was low back pain.
The Board denied service connection for a low back
disability on the grounds that there was no continuity of
symptomatology such as would be necessary to relate the
inservice back injury to the post service back complaints.
The evidence received subsequent to the Boards 1986 decision
includes copies of the previously considered statements from
service acquaintances, a statement from another service
acquaintance who recalled that the veteran had been
hospitalized after suffering a back injury in November 1949,
additional service medical records dated from December 1949
to April 1952, and a statement from Joe W. McCauley, M.D.,
were also obtained. In addition several statements were
submitted from persons who knew the veteran subsequent to
service.
The duplicates of previously considered statements cannot
serve as new and material evidence since they were
considered in the prior decision.
The statement from a service acquaintance with personal
knowledge of the inservice back injury is new in that there
was no prior corroborating evidence from persons who served
without the veteran when he was hospitalized for that
injury. However this evidence would not change the outcome
of the prior decision. The Board essentially conceded the
existence of an inservice back injury in its 1986 decision.
Its denial was based on a lack of evidence linking that
injury with post service findings long after that injury.
The statement from the service acquaintance does not show
any continuity of symptomatology.
Likewise the additional service medical records are new but
continue to show no treatment for or history of back
disability. Although all service records, positive and
negative, are to some degree relevant, the Board concludes
that completely negative records merely tend to confirm the
reason for the prior denial and do not establish a
reasonable possibility that the outcome would be changed.
The statements from lay persons who knew the veteran after
service also do not serve to show a continuity of
symptomatology. First, none of these statements
specifically report back symptomatology until long after
service. Second, as noted above, under Caluza, the evidence
necessary to link inservice injury with post service
disability must be medical rather than lay. It is true that
Caluza dealt with the standard necessary for well grounded
claims, and the instant issue involves new and material
evidence. However, the standard for a well grounded claim
is actually much lower than that for new and material
evidence. Lathan v. Brown, 7 Vet.App. 359, 365 (1995).
Hence, if evidence would not be sufficient to render a claim
well grounded, it could not constitute new and material
evidence to reopen a previously denied claim.
Dr. McCauley's statement merely repeats a previously
considered report of history from the veteran, and relates
that he currently has a back disability. The doctor's
statement does not relate the reported injury in 1949 to the
current findings. Evidence which is simply information
recorded by a medical examiner, unenhanced by any additional
comment by the examiner does not constitute competent
medical evidence. Therefore, while new, it does not create
a reasonable possibility of a change in the outcome and
cannot be considered new and material.
The Court has held that were a veteran has failed to submit
new and material evidence, VA may have a duty to inform him
of the evidence necessary to reopen the claim. Hayes v.
Brown, 7 Vet.App. 420 (1995). In this case the veteran
should have been put on notice by the Board's prior
decision, and by the RO's notices of decisions, statement of
the case and supplemental statements of the case. The Board
also notes that the veteran has not reported the existence
of any specific evidence which could serve to reopen his
claim. In fact his testimony at the hearing on appeal in
December 1985, suggests that such evidence does not exist.
There he testified that he had received no post-service
treatment for a back disability until he was seen by the VA
in the 1980s.
Since none of the evidence received since the Board's 1986
decision raises a reasonable possibility of a change in the
outcome, the Board must conclude that new and material
evidence sufficient to reopen his claim has not been
submitted.
ORDER
Service connection for a left hip disability is denied. New
and material evidence sufficient to reopen a claim for
service connection for a low back disability has not been
received, and the claim is not reopened.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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